The Armed Services Committee issued a press release announcing the mark-up of NDAA 2015. Included for our viewing audience are items related to:
Continue to address the troubling prevalence of suicide within the military community. While the Committee is cautiously optimistic about the recent decline in suicide rates in the force as a whole, the increase in suicides among the Special Operations Force and new information on suicide for immediate military family members is deeply troubling. The Committee requires additional reporting on suicide rates for immediate family members of active and reserve forces and an assessment by the Secretary of Defense of the increase in suicides among special operators.
Continue robust oversight and reform of the military’s handling of sexual assault. This includes reporting requirements updating Congress on progress in implementing the dozens of reforms included in the FY12, 13 and 14 NDAA. It also includes new reforms spearheaded by Reps Turner (R-OH) and Tsongas (D-MA), including as part of every commander’s performance appraisal – an assessment of the handling of sexual assault cases and how unit members treat those making sexual assault allegations.
You perhaps be particularly interested in:
SEC. 532 [Log 53901]. ADDITIONAL DUTY FOR JUDICIAL PROCEEDINGS PANEL REGARDING USE OF MENTAL HEALTH RECORDS BY DEFENSE DURING PRELIMINARY HEARING AND COURT-MARTIAL PROCEEDINGS.
And also this.
Section 505—Required Consideration of Certain Elements of Command Climate in Performance Appraisals of Commanding Officers. This section would require a Secretary of a military department to include information regarding command climate with regard to allegations of sexual assault and the response to the victim of sexual assault by other members of the command on the performance appraisal of a commanding officer.
There are some potential significant issues depending on how the Services effect this proposal in addition to changes already being made. On its face the rule change calls for something no different than getting graded on support for attention to EEO standards and programs. So as a general principle I’m not averse to holding all accountable. But, in view of the sexual assault politics, there is cause for concern in the way such a policy or practice may be enforced, or morph into.
The Army and Air Force has made changes along these lines for reports on all officers regardless of grade or position. This includes defense counsel, military judges, and importantly panel members.
There is a significant problem IMHO with the Army rule (Army Admin Directive 2013-20), as I recently told a military judge along with the request for recusal and as part of a UCI motion. The Army does not seem to counsel care when rating military judges, trial counsel (who have ethical obligations), staff judge advocates (who have ethical obligations), defense counsel (who have ethical obligations, see my post here), and members. The Air Force has attempted to address the issue, although not strongly enough in my view, in their change. Whereas the Army rule makes no attempt to account for Article 37, UCMJ, the Air Force does. See, Asst DCS, Manpower, Personnel and Services Memorandum, Air Force Guidance Memorandum (AFGM) to AFI 36-2406, Officer and Enlisted Evaluation Systems, 1 January 2014. Unlike the Army, the Air Force includes at least this language:
188.8.131.52. Court-Martial Panel Membership. Do not consider performance as a member of a court-martial panel, or render a less than favorable evaluation because of the zeal in which the ratee served as a defense or respondent’s counsel (see Article 37, UCMJ). This is not intended to inhibit an accurate portrayal of a counsel’s competence in the representation of clients.
(I have asked one military judge to recuse themselves on the basis of the Army administrative directive, and I’m working on writ related to the recusal).